How a river in Quebec won the right to be a legal person

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How a river in Quebec won the right to be a legal person
WATCH: The Magpie River in Eastern Quebec is the first ecosystem in Canada to be granted personhood rights, joining a global movement using a legal revolution to save the planet. And as Krista Hessey found out for The New Reality, it was an alliance among a First Nation, the local county, and a group of paddlers that came together to protect the Magpie from development – Oct 2, 2021

“Nin nitapueten, innu miam utshashumekᵘ etenitakushit Nanitam kau nataimᵘ shipinu anite ka inniut.”

“I believe that man is like a salmon. He goes up the river where he was born.”

            —Pinip Petahu

Since time immemorial, the Innu of Ekuanitshit have followed the same migratory pattern as the salmon that populate the myriad rivers running through their ancestral territory — travelling inland across rugged terrain in the winter and canoeing down the rivers to the coast in the summer.

One river, in particular, holds a special significance to the community: the Magpie. Often referred to as one of the last great wild rivers in Quebec, it winds its way from the Labrador border through nearly 300 kilometres of dense boreal forest and mountainous Canadian Shield before emptying into the mouth of the St. Lawrence River.

With the exception of the final stretch, the river is undeveloped and inaccessible by car. There are no trails or lookout points, but if you were to follow in the footsteps of the Innu’s ancestors today, you might come across a group of white-water rafters barrelling through the Magpie’s world-renowned rapids.

When you ask locals here about the Magpie, whether Innu or francophone paddler, their eyes light up in a mix of affection and determination. A small army has formed along the sparsely populated north shore of Quebec, united only by a shared love of the river and a drive to protect it.

Danny Peled paddles a canoe on Magpie river. Brent Rose / Global News

For a decade, conservationists, the Innu of Ekuanitshit, white-water rafting enthusiasts and local government officials have been fighting tooth and nail to prevent a dam from being built on this river. In 2018, they formally united to create a committee called the “Mutehekau-shipu Alliance.”

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They want the river to become a protected area — an ambitious goal in a province whose development is historically tied to hydroelectricity. So, they decided to try a new tactic: granting the river legal personhood rights.

It’s a new tool that communities and Indigenous groups around the world are employing to stop environmental degradation and combat climate change. In just the last 15 years, forests, rivers and lakes from New Zealand to Colombia have been granted the same legal standing as a person. Closer to home, Lake Erie was granted legal personhood by residents in Toledo, Ohio, in 2019 after toxic algae blooms threatened their drinking water.

Drawing inspiration from those cases, the Mutehekau-shipu Alliance partnered with Montreal-based lawyers to see if they could accomplish something similar. In February 2021, two parallel resolutions were adopted: one by the Innu Council of Ekuanitshit, the other by the regional government of Minganie. The resolutions grant the river nine rights — including the right to live, exist and flow; the right to respect for its natural cycles; and the right to take legal action. The move breaks new legal ground, but hasn’t yet been tested in a Canadian court.

Mari Margil, the executive director of the Center for Democratic and Environmental Rights and one of the leaders of the rights of nature movement, attributes the movement’s rapid rise in popularity to the real-world effects of climate change.

“People are engaging with it because they sense the urgency,” she says. “There’s sort of a growing consensus that environmental laws everywhere around the world — which legalize how human beings use nature, how we exploit nature — that those laws are not enough to protect nature.”

Mari Margil has been involved with the rights of nature movement since 2006.

It’s important to understand that assigning nature legal personhood does not mean a tree would have the same rights as a human being. Nor would a tree have the same rights as a river. A “legal person” is any entity that the law recognizes as a holder of rights and duties. For example, corporations are considered legal persons, as are some churches and ships, and each has a unique set of rights and responsibilities.

Typically, a legal person can own things, enter into binding contracts, and sue and be sued in court. In the case of a corporation, as with a tree, designated humans must act for it, like a guardian or board of directors.

The important takeaway is this: With personhood rights, a tree would no longer be seen under the law as an object to be owned and exploited, but rather a legal subject with its own rights.

But it’s not only a legal revolution. The rights of nature movement calls for a radical shift in the way humans think about and interact with the environment — away from viewing nature as something that exists solely for human benefit to one that recognizes humankind’s interdependence with the natural world.

Though Margil is not a lawyer, she understands that big changes in law don’t come without mainstream backing. She cites the abolitionist and suffrage movements as kindred rights struggles.

“Change came about because they were not only successful in changing law and changing constitutions, the highest form of law, they were also necessarily focused on changing how society, how culture thought about these issues,” she says. “Making that shift in our heads and our hearts is essential.”

The movement’s ideological origins can be traced back to 1972, when legal scholar Christopher Stone published the seminal paper, “Should Trees Have Standing?” in the Southern California Law Review. Stone wrote that under the existing structure of law, nature is considered a rightless thing or property (“Nature is the dominion of Man”) and argued that there is precedent within the law that would allow “natural objects” to have legal standing should humans give up “our sense of separateness and specialness in the universe.”

Legal scholars and movement leaders today, though, are quick to acknowledge the idea has much deeper roots in Indigenous cultures and law.

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Shanice Mollen-Picard says the keeping the Magpie “wild” will allow future generations of Innu children to visit their ancestral territory. Brent Rose / Global News

“Why not give rights to a river?” says Shanice Mollen-Picard, who has been working for the last five years on conservation efforts for the Magpie River. “As an Innu, I don’t consider the river a thing, I consider it a living being, equal to myself.”

The Innu have another name for the river: Muteshekau Shipu, which means “the river where water flows between square rocky cliffs” in their language. If you ask anyone on the reserve what the Magpie means to them, you’ll often get the same answer: everything. It’s their highway, pantry, water source and pharmacy. For the Innu, the river has her own spirit and agency. She provides them with the necessities of life, and in return, they treat her with respect.

When members of the community go to the Magpie, there’s an immediate connection, Mollen-Picard says.

“We drink directly from the river and eat what is in the river. The landscape is breathtaking immediately. When you get (to the river), it feels like home.”

River bank of the Magpie. Brent Rose / Global News

Rafting expeditions on the Magpie have allowed her and other Innu women in the community to reconnect with their traditional territory, or Nitassinan. She tries to go every year and the community recently crowdfunded a youth trip.

Up until the 1960s, the Ekuanitshinnuat lived a nomadic lifestyle. The creation of a reserve and residential schools deeply impacted their ability to practise their way of life. These modern-day expeditions offer a window into their grandparents’ experience — a contemporary expression of the migratory tradition.

“The link is very strong, even today; we have not lost it,” Mollen-Picard says. “And more and more, we want to go back so that our future generations can benefit.

“We have a very important job to be able to protect her.”

You don’t have to use your imagination to see what everyone’s worried about, you can just drive 30 minutes east of the reserve to the dam complex on the Romaine River.

 

The dam complex on the Romaine river consists of four dams and generating stations. Brent Rose / Global News

In 2009, Hydro-Québec began construction of a massive hydroelectric development on the river, building four dams and generating stations. It’s the largest project the company has undertaken since construction started on the James Bay dam in the 1970s.

The water from the Romaine produces enough green energy to power nearly half a million homes in Quebec for a year. But its four reservoirs also flooded nearly 280 square kilometres of forest, altering the river and the landscape forever.

Hydro-Québec signed two agreements with the Innu Council of Ekuanitshit as part of the Romaine project, which established a $57.6-million fund for “economic, community and cultural projects” over the next 50 years. But despite that, the project garners mixed reactions here.

Georgette Mestokosho’s laugh can be heard a field away. With her apron covered in flour, she smiles and jokes with other women in Innu as she prepares bannock, a traditional bread that she will bake in a sandpit of driftwood coals that’s been burning all morning.

Mestokosho runs the traditional Innu pharmacy, gathering medicinal plants from the ancestral territory. She closely guards her family recipe for bannique, but didn’t hold back when asked about the recent changes to the land here. She says when she saw the new Romaine reservoirs from a plane, it broke her heart. A vast, still blue lake has replaced her family’s traditional hunting camp.

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“The ancestral territory of my family is gone. It’s underwater,” she says. “It stripped from me all my childhood memories, but also the childhood memories of my mother, and that of my grandmother.”

Georgette Mestokosho holds two loaves of bannock that she baked in a sand pit at Ekuanitshit First Nation. Brent Rose / Global News

Had Mollen-Picard been old enough to vote in the referendum the community held on the project, she says she would have voted against it.

“Now, I have the ability to say my piece, to say, ‘No, I don’t want any more industrial projects on the territory.’”

As ground was being broken on the Romaine River, Hydro-Québec began exploring similar plans for the Magpie. That’s when the SNAP Québec (the provincial chapter of the Canadian Parks and Wilderness Society) became involved. For years, the non-profit lobbied provincial ministries to have the watershed become a protected area to no avail.

The organization’s conservation director, Pier-Olivier Boudreault, said he realized fairly quickly that parts of the government were not for the protection of the river and that they needed a new long-term strategy.

The project proposed for the Magpie never came to fruition, and Hydro-Québec spokesperson Lynn St-Laurent says the company has no plans to develop new hydropower capacity in the “short, medium or long term.”

When asked about the company’s stance on the protection of the Magpie, St-Laurent says Hydro-Québec has a responsibility as an energy provider “to meet the demand for clean energy.”

Boudreault says the company’s continued opposition means it’s keeping the Magpie “in their wallet” for future development.

Hydro-Québec recently signed a tentative $20-billion deal with New York to help the state transition away from fossil fuels and meet its goal of relying on 70 per cent renewable energy by 2030.

The Romaine will be supplying part of that power, and St-Laurent says the company doesn’t need to build any new dam projects to fulfill its side of the agreement. But despite these assurances, the threat to the river and surrounding environment still looms along the north shore.

When Mollen-Picard had her son just over a year ago, she says it was an awakening. She and others in the community had been noticing the climate changing around them: the increased erosion, shorter hunting seasons, warming temperatures and melting of the permafrost. But with the birth of her child, the issue took on a new urgency.

“How is he going to live? Will he be able to paddle on the same river, drink the same water I drank? Will he be able to practise the traditional ways? These are questions that I am asking myself.”

Shanice Mollen-Picard’s son just turned one. She wants him to be able to paddle the Magpie as she has. Brent Rose / Global News

Luc Noël says his constituents have had the same revelation. He is the top elected official for the region of Minganie, which comprises eight municipalities. Noël says the Romaine project was necessary for the development of the region, providing improvements to the sole coastal highway and much-needed jobs, but now, their focus is on preserving the region’s ecological gems and mitigating the effects of climate change.

“Communities like ours in the north shore are directly affected by climate change and a rise in temperatures,” he says. “The economy must develop, must continue to develop, for sure. But in another way.”

Group of white water rafters on the Magpie in 2018. Courtesy Danny Peled

Noël sees ecotourism as the future economic driver of the region. On an average year, 15,000 tourists visit the region each year, but in the last two seasons, they’ve seen that number rise to more than 21,000. Accommodations were fully booked, RVs filled parking lots, and people crowded otherwise quiet streets to line up for the few restaurants in town.

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Although the pandemic may have had a hand in luring more people outdoors to the north shore, it cemented the idea that Noël’s “other way” is possible with the right planning and development of attractions, like the Magpie. He says the county is prepared to fight for the river, even if it means going to court.

“If civil disobedience is necessary to protect our land, protect against climate change, protect nature, we will do it.”

Magpie Falls, the river’s third water fall. Brent Rose / Global News

You can hear the low rumble of the river’s falls long before it comes into view. Following a footpath navigated only by those who are familiar with the way, we arrive at Magpie Falls, the third and largest waterfall on the river. Standing next to it, all your senses come alive: the low rumble has become a roar, the air smells of an earthy perfume, and a cool mist brushes your face. The power of the river is palpable, and you can’t help but feel dwarfed by its greatness.

The river has an effect on people, I’m told by our guides, Danny Peled and Sylvain Roy. They both came across the river 10 and 20 years ago, respectively, and are now bonded to it.

Roy has paddled the Magpie for 20 years, and advocated for its protection just as long. He’s a member of Eaux-Vives Minganie Association, a group of white water enthusiasts that is also part of the Mutehekau-shipu Alliance.

When Sylvain Roy came across the third falls in 1999, he knew, in that moment, that this is where he wanted to spend the rest of his life.

“I said to myself, I’m going to build a cabin here someday,” Roy says. And he did. His small, off-the-grid cabin on the banks of the river is the only structure for miles.

“This is a world-class river,” says Danny Peled, who has guided white water expeditions all over the world.

Peled runs a white water rafting company, Boreal River Adventures, on the Magpie. He was hired to guide a rafting trip for another company in 2006, fell in love with the river, and never looked back.

National Geographic has designated the Magpie one of the best rivers in the world for white water rafting. People come here from all around the world to go on Peled’s week-long expeditions.

A 20-minute helicopter ride drops you off at Lake Magpie, where the sounds and worries of civilization are replaced by a quiet calm.

“When people come to this river and experience a trip like this, they kind of get it in their blood,” Peled says. “It’s an experience of really connecting with the place, but also with yourself and with your senses.”

Sylvain Roy and his dog, Katak, stand next to Magpie Falls. Krista Hessey / Global News

Although the river’s rights have not been tried in court, both Peled and Roy are hopeful the resolutions will be enough to deter any future development on the river.

“There aren’t many places like this left,” Peled says.

Minganie is not the only place in Canada looking at legal personhood as a way to protect the environment. Yenny Vega Cárdenas, a lawyer and the president of the International Observatory on the Rights of Nature who worked on the Magpie’s bill of rights, says there are groups in five provinces working on granting nature rights, including her own project: St. Lawrence River.

Assigning rights to nature doesn’t mean it’s untouchable, but rather, as Vega Cárdenas explains, industry will have to shift its approach from a pay-to-pollute system to one in which industry must pay to restore an ecosystem or not be granted a permit to pollute at all.

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For instance, if you have a corporation polluting a river, violating the river’s right to be free from pollution, for example, then guardians of the river can seek to enforce those rights in court. If the river’s right is upheld, the corporation would have to stop polluting the river and pay to restore it to a healthy state. Or, before a project could go ahead, a corporation would have to prove that its actions would not violate the rights of the river.

“It provokes a paradigm shift,” Vega Cárdenas says. “We are not saying to stop the economy, but to change the way the economy is functioning.”

She says the Magpie River was the “perfect” first case because of the collaboration between a First Nation and a non-Indigenous community — an important distinction for Canada as the country continues its truth and reconciliation journey, and a first for the rights of nature movement as a whole.

“To the Innu people, the Magpie river is our history, our land, our medicine plant, our water, our food,” says Lydia Mestokosho-Paradis. She works at the Maison de la culture Innue in Ekuanitshit.

Aimée Craft, a professor and Anishinaabe-Métis lawyer who specializes in Indigenous water law, says that the reason why some Indigenous groups are engaging with the rights of nature movement is that it aligns with their own legal systems. But it’s not a perfect fit.

Indigenous laws, for the most part, are centred around the idea of responsibility, she explains. It’s more of an ethos of giving, rather than the two-way exchange of rights and obligations that underlies Western legal systems. They also tend to take a more comprehensive view.

“Western legal systems focus just on that one thing in that one circumstance, whereas Indigenous laws look at interconnections and the multiple relationships that exist and balance them all,” she says.

But despite these differences, Craft says Indigenous communities across the country are eager to have more say in the governance and protection of the environment and some are looking at legal personhood as a way to do that.

The question on everyone’s mind now is: how effective will this be in court? Will a tree or a river be able to sue a human or corporation? And what happens if a human sues a tree or a river?

In February 2020, Lake Erie’s bill of rights was struck down by a U.S. federal judge on the grounds that it was “unconstitutionally vague.” Elsewhere in the world, rights of nature legislation has enjoyed some wins, namely in Colombia (where the constitutional court upheld the rights of a river) and Ecuador (where the rights of nature have been embedded in their national constitution).

But in Canada, expanding legal personhood rights to the natural world is a revolutionary concept and legal scholars say it’s too soon to know the impact the Magpie case could have.

Its proponents know that change doesn’t happen overnight, especially when it comes to the law. As Stone writes in “Should Trees Have Standing?,” it was once unthinkable for Black people and women to have legal rights, yet today, it is heralded as a triumph.

“The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable,” Stone writes. “This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ — those who are holding rights at the time.

“We are inclined to suppose the rightlessness of rightless ‘things’ to be a decree of Nature, not a legal convention acting in support of some status quo.”

As extreme weather events disrupt and destroy communities across the globe, the question now is: how long will the status quo remain?